Are Bad Background Checks Costing Jobs?

This is TELL ME MORE from NPR News. I'm Michel Martin. In a few minutes, we'll hear from the former Commerce Secretary in the George W. Bush administration, Carlos Gutierrez. He's organized a group of high-powered Republican donors to press for immigration reform. He says immigration is a boon to the economy and we'll hear more of his argument in just a few minutes.

First, though, we want to talk about another issue that affects workers and would-be workers. It's FBI background checks. More and more employers are turning to the FBI's criminal records to do background checks on potential and even current employees. The problem is that these records often contain mistakes that can lead to innocent people not getting jobs for which they are qualified and even losing jobs they already have - that, according to a new report from the National Employment Law Project. That's a nonprofit group that advocates for low-wage workers. Here to tell us more about this is a co-author of the report, Madeline Neighly. She's a staff attorney at the National Employment Law Project, which is often called NELP. Madeline, thanks so much for joining us. Welcome

MADELINE NEIGHLY: Thank you so much for having me.

MARTIN: According to the report, roughly 17 million FBI background checks were conducted for employment and licensing purposes in 2012. That's six times the number conducted just a decade ago. Now why is that? Does the law require this, do changes in the law require this or are employers doing this on their own?

NEIGHLY: Well, we are seeing a big change in the law post-9/11. There have been more and more laws on the federal and state levels that allow access to the FBI background checks. Most employers aren't accessing these. There must be a state or federal regulation in place that allows you to do so.

MARTIN: And why are they doing it? Is this required or they just feel that they need the assurance of this after 9/11?

NEIGHLY: I think that, you know, the FBI background checks are really seen as the gold standard. So if we're going to be doing a background check for a position, then folks really want to be doing these. But what the report is highlighting is, while they might be seen as the gold standard, they're pretty tarnished records. There are huge inaccuracies and mistakes in these records that are costing workers jobs.

MARTIN: We got a clip from Raquel Vanderpool. She was also quoted in your study. She actually got fired from a job that she loved as a Certified Nurse Assistant because a prior conviction that was supposed to have been cleared from her record was not. And there were serious issues in getting the records fixed. As I mentioned, we spoke to her earlier and here is a short clip.

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RAQUEL VANDERPOOL: It still took quite a while to go through the courts because the Department of Community Health that had received the information from my fingerprints did not want to hear any different.

MARTIN: So is that a common experience from the experiences of people you talked to for the study?

NEIGHLY: It is. What we see a lot is there aren't systems in place for when a background check comes back for a job or a license. There's no system there for folks to contest it, and so workers are really out on their own trying to figure this out. And as you can imagine, it's a pretty difficult process. You're contacting the FBI. You're contacting the state. It never made it to the court, so you've got to get somebody to write a letter to say that nothing ever happened. It's really complex and people aren't able to navigate their way through it. Also, in this climate, we know that any delay is going to mean somebody else gets that job.

MARTIN: Your report says that this does disproportionate damage to people of color. Why would that be?

NEIGHLY: African-Americans and Latinos are disproportionately impacted by the criminal justice system, so they're more likely to get arrested. If those arrests are showing up on the background without the disposition - the final outcome of that case showing that that charge was dismissed or dropped or didn't lead to any conviction - those folks are going to get impacted more, and that's really what we're seeing with this. Fifty percent of the records don't have that final information. So all the employer or the licensing agency is seeing is an arrest and not the fact that those charges didn't lead anywhere.

MARTIN: So what is the core criticism of the report? Is it that the information is just simply inaccurate, like in the case of Raquel - that this information should have been expunged and was not - or was it not true to begin with? I mean, what's the common scenario that you're talking about? Or is it the third issue that you talked about, is that arrests stay on one's record even without a disposition and that without that disposition, there's just this aura of suspicion? Which is it? All of the above?

NEIGHLY: It's all of the above. It's mostly this arrest without the final outcome or when you get that dismissal or expungement, that that's not being reported as well. So we don't really have a problem of the information not making it there in the first place. It's that all of the rest of the information that's necessary to create the whole picture and tell the whole story isn't there. These reports aren't just hurting workers, they're hurting the employers who can't rely on the accuracy. They're making decisions when they don't have all that information they need.

MARTIN: Well, we asked the FBI about this whole - this particular issue that you flagged here, which is that arrests stay in a background check even when they don't lead to convictions, when the charges are thrown out. The FBI released a statement in response and I'll just quote from it. In considering the suitability of applicants for positions involving classified information, national security clearances, positions of public trust, and childcare, the deletion of an arrest without final disposition from the applicants - and we're talking about criminal history record here - could have a devastating impact on public safety and homeland security, end of quote. How do you respond to that?

NEIGHLY: There are two things I want to say to that. One is, we are not saying take the arrest off. We're saying show what happened. Show that it led to not guilty. Show that charges weren't filed. Show all of the information. And the second is, sure, FBI records are run for positions in national security. They're also run for the folks who do janitorial work in a federal building, the people who work in a cafeteria. So we're talking about a wide range of positions that don't all have the same level of safety or sensitivity. Sixteen-point-nine million background checks - these folks aren't all doing the same job.

MARTIN: Can we go back to the question that you said earlier, that there are simply - that you found and your report found, that there are just a high rate of simple inaccuracy. In other interview, I saw that you were quoted as saying that these might be considered the gold standard, but the records are a mess. Why are they a mess? I mean, is it haste? Is it just as a computer error? Like, people have had - many people these days have had the experience of having information show up on a credit report that isn't theirs. Why are they a mess?

NEIGHLY: Well, with the FBI background checks, we are seeing that they're fingerprint-based, so you're not going to get a lot of those inaccuracies that come with using, you know, John Smith and there are so many John Smiths. But they're a mess because the data is not getting reported up. It's not coming from the courts to the state repository to the FBI. So it is really an issue that the states need to be doing a better job of reporting, but it's a federal issue that needs a federal solution.

We've spent hundreds of millions of dollars. There are multiple tasks forces working to get the states to report the records up. They're not doing it well, and so we need the FBI to stand up and say, these are our records, sent out under our seal and we're responsible for making sure that they're accurate. In the same way that we already have a process in place for FBI background checks for guns, where they go out and they do find those dispositions, we should be doing the same for employment.

MARTIN: Are there any other recommendations that you have that would both protect the interests of employers and national security and workers who are unfairly being labeled by in accurate reports? We only have about a minute left. What are the recommendations?

NEIGHLY: Sure. So there are two bills - one has already been introduced from Representative Scott, one will be introduced by Representative Ellison - that really target this issue. We also encourage the FBI to report on what's going on. How is this affecting and what communities is it affecting? And we really do encourage that there be transparency within processes that require FBI background checks, to allow folks to get a copy of their record and to challenge that there needs to be a robust appeals process in all of these laws.

MARTIN: That was Madeline Neighly. She's a staff attorney for the National Employment Law Project. That's a nonprofit group that advocates for low-wage workers, and she was kind enough to join us from our bureau in New York. Madeline Neighly, thank you so much for speaking with us.